Tuesday, March 29, 2011

The paler Martha gets in the BBC drama Silk, and she is beginning to look like a character from a Noh play, the more tanned and fit the others look. But our hearts bleed for her.

That was the motif for tonight's programme--literally and metaphorically, blood on the floor everywhere. Martha miscarries; a chambers' putsch narrowly missed a blood-letting; and a judge inconveniently bleeds all over his hall floor after Martha's favorite rent boy client goes free (almost) again.

It was difficult to see who was the bad and who was the good. Billy, the clerk, is tipping listing officers--I never did see that--to get a floater to drift a bit more while inserting a mole in the chambers insurrection. As the head of chambers says: "Billy is 80% and 20% bad." The moral of that is we can live with it. Well, if you come from Essex I suppose it's normal. As for John, the poor junior clerk with an honest heart, well he comes across as a bit of a goody-goody. I don't think he's cut out for clerking.

Martha does get her merit badge, ie. silk, while bounder Clive must wait for another time. But we are left on tenterhooks as to which pupil is taken on. I suspect it will have to be both otherwise they will bitch and come back to haunt us. Ultimately, good triumphs or rather 80% does.

Maybe this is what series two of Silk will look like when Martha glams it up as a silk.

Sunday, March 27, 2011

Last week I attended the Weblaw Forum in Berne, Switzerland, where I talked about the changes to the profession and practice from a global perspective.

While there I took a break and found myself taking the funicular to the top of Gurten. One of the first things I saw was this sign with Bern's mascot enjoyably licking the foam of his Gurten beer. Love it!

Friday, March 25, 2011

Roll On Friday reports that the Bar Council has started a new website to raise applications from ethnic minorities and women. See No Bar to the Bar. We can say it is a start but....

ROF reckons the Bar Council is being coy since it says nothing about the horrendous costs involved in becoming a barrister: over £70,000 of debt. And there aren't many pupillage (apprenticeship) places available.

No Bar to the Bar is also coy about what it's doing. There is no explicit reference to diversity or discrimination of any type. It's done by inference and a knowing kind of maty-ness. Although we see pictures of Asians and Blacks and women, there is no mention of sexual orientation or transgender issues. There are occasional references to "atypical background".

Really, the Bar could do better. It's done enough research on these matters to know that it is better to be explicit than shyly hoping no one will notice.

Thursday, March 24, 2011

"I did not study at Oxford and the LSE to end up working with people who graduated from Leicester or Queen Mary," wrote one person on legalweek.com in response to the news last week that magic circle outfit Freshfields is extending the number of universities from which it recruits.

This is one of the comments that attached itself to the Legal Week story on how law firms are increasing their diversity by recruiting from some extra universities. I wrote about this last week.

But there's a growing sense that the legal profession – which is notorious for lagging behind other walks of life in reflecting the public mood – is casting aside some of these prejudices.

But as I said before "casting aside" isn't really about increasing diversity in the talent pool, it's about trying to find a few more recruits who are nearly like us from universities that are like Oxbridge. Perhaps Alex's closing statement says it all, and it's a depressing all.

A senior partner at a large law firm told me recently that he thought recruitment based purely on academic merit had gone too far, advocating instead a return to the old system of hiring "five brainboxes, five wild cards, five solid all-rounders who were good at sport (for the firm's cricket and rugby teams) and five stunningly beautiful women".

He added that one of the main reasons his firm stuck to the top universities was the students themselves: "They're the biggest snobs of all. If we recruit too widely, they won't come to us."

Screaming and kicking into the 21st century might be the norm here.

And let's add in an arrival from the Lawyer that Slaughter and May managed to promote 5 associates without a woman among them. Marjorie in the comments says it all:

So, not a single woman gets promoted. And not a single woman was promoted last year. And two female partners have just left. What does this do to their diversity stats??

Wednesday, March 23, 2011

Today the Law Society has agreed to allow the Solicitors' Regulation Authority (SRA) to become a licensing authority for Alternative Business Structures (ABS). The reason for my post title is that we weren't sure if the Law Society would actually do this.

The Law Society has kept everyone on tenterhooks. Whether it was the backwoodsmen who resolutely oppose ABS and consider them the devil's spawn, we won't know now. Until today the only committed ABS regulators were the Legal Executives and the Licensed Conveyancers, so it would have been ridiculous if the Law Society had said no. Solicitors are clearly going to form the largest number of ABS supporters initially.

I've been away in Switzerland recently but managed to catch to catch episode 5 of Silk. How can I dislike and like a TV show so much? But this one brings out the schizophrenia in me. (My blog posts are now linked into the BBC web page for the programme!)

Episode 5 gave us the light and dark, the good and evil, neatly reversed, just in case we missed the symbolism. Billy, the senior clerk (second from right above), is suspected of embezzling thousands of pounds from chambers' accounts. He's white, from Essex, an all-round diamond geezer.

Kate, a black barrister, with her accomplice, John, the black junior clerk, hack into Billy's computer to find the evidence of his (alleged) defalcation. Despite having the figures, Kate can't persuade either Martha or Clive--our QC wannabes--to jump on board.

We don't know yet if Billy has been a bad boy. Somehow I feel uneasy at the use of racial stereotyping to denote goodness and badness this way. It's an easy trigger to pull to whip up the emotions. We shall have to see how this plays out.

There are other aspects of this programme that deserves attention since they've been raised in the comments at johnflood.com. One is the cab rank rule which is one of the holiest shibboleths trotted out by the Bar every time it faces criticism.

The idea is that any barrister will take any case that comes along just as any London or New York taxi driver will pick up any fare. After that sentence you know where I'm going with this. The cab rank rule is one of the biggest con tricks ever pulled. Anyone at the Bar knows how easy it is to evade the "rule". Even the Office of Fair Trading could find no evidence for it. And you only have to watch the barristers on Silk itself squirm there way out doing cases--"Oh, you promised to keep the day free for me, Billy!"

Another issue is the apparent lack of conflict of interest when two barristers from the same set of chambers appear on oppisite sides of a case. In episode 5 we see Martha feeding lines in an attempted murder case to defence counsel who also happens to be a member of Shoe Lane Chambers. And this takes place even though there's a Chinese Wall between them in Chambers.

But, of course, it's acceptable because it is in the higher interests of justice. "You're not there to win or lose, but just present the facts."

I know I'm going to keep watching and squirming: liking and disliking: resigned and irritated. So be it, only three more episodes to go. I wonder if there'll be a second series?

Friday, March 18, 2011

Here we are in the 21st century and the big law firms have announced they are taking on board diversity. Three cheers you might say.

In addition to Oxbridge they will now recruit from universities such as Queen's Belfast, Leicester, Queen Mary London, Cardiff, and Sussex. These are all well-known for being lower-caste universities and probably haven't had much success in getting their graduates hired in law.

Now this is why diversity is one of the regulatory objectives for the modern legal profession. If you want to know more about the subject, read my colleagues evidence-based research for the Legal Services Board.

Tuesday, March 15, 2011

Whoops! It happens...Rick Kordowski, owner of Solicitors from Hell has to pay £10,000 to a solicitor libelled by the site according to Mr Justice Lloyd Jones who was reported as saying the comments "were baseless, abusive, malicious, and an unwarranted slur on the competency and probity of a young lawyer."

Kordowski is appealing the judgment.

What really caught my eye, however, is the venomous interchange in the comments below the Law Society Gazette article. They are wonderful and not to be missed.

Let me give a few examples:

1. Mr Kordowski's behaviour is utterly reprehensible. He publishes allegations against solicitors with no attempt to ascertain whether they are justified and then refuses to remove them unless the solicitors concerned pay him money. That is morally cowardly and legally criminal. And then he claims he has no money so isn't worth suing.
Perhaps he would be so kind as to explain what his motivation is other than the money. If he had a bad experience with a solicitor at some stage, I suspect it was because he was the client from Hell.
I and my firm have never appeared on his site. While I normally post using my name, I am not doing so in this instance because I do not know what might be done in revenge by this odious and extraordinarily vengeful little man. (Anonymous)

2. Mr Kordowski makes some very bold remarks, but I bet he hasn't got the guts to say exactly how much money he has made from his sites over the years, including advertising income. No doubt he will say "not much" or something else suitably vague, but I'm sure it will all come out in the wash one day. (Anonymous)

3. I don’t have the time or resources to verify all submissions. If a poster agrees to my T&Cs, leaves their full contact details, makes a monetary contribution and above all, is BRAVE enough to post a complaint about a solicitor. That’s good enough for me! (Kordowski)

4. Rick Kordowski and his Solicitors From Hell website is the best thing that has happened to the legal profession in years, today too many solicitors dont know when to stop taking liberties. SFH can only improve the way in which too many Solicitors deal with their victims. (Beach)

Interestingly, from what one can glean the critics of Kordowski are lawyers--doubtless in purgatory or heaven--but they all signed themselves in as "anonymous", which is on a par with their criticism of him.

While he may have run his site a tad carelessly, the fact that he got 5,000 submissions from punters suggests there is something in it. Doubtless some of these were crazy but I bet a substantial number were genuinely felt. And even if there are many lawyers toasting his comeuppance tonight they should think carefully about the consequences of this.

One of the main reasons we have the Legal Services Act 2007 is that lawyers didn't respond to complaints in a proper and timely manner. The result is that they now have external regulation instead of self-regulation; they have a new Legal Ombudsman who will name and shame; and in October 2011, just 6 months away, they will face Alternative Business Structures.

I have a feeling that King Canute was the most influential philosopher in history, more than Socrates, because he has more adherents.

Sunday, March 13, 2011

Here is more on the North Carolina Bill to permit non-lawyers to own law firms and have ABS from Neil Rose at Legal Futures. It seems to have taken everyone by surprise.

He quotes Mitt Regan of Georgetown saying that for large law firms there would be problems elsewhere in states that wouldn't permit this type of ownership. Yet multidisciplinary practices are accepted in Washington, DC. Perhaps US law firms could become Swiss vereins and get round it that way.... Highly unlikely, I know, but never underestimate the ingenuity of lawyers.

Tuesday, March 08, 2011

The BBC is running a new legal drama called Silk. I watched my first episode tonight and the verdict: dire.

It is plodding, panders to prejudice and convention, and looks tired. Something goes wrong when the Brits do legal drama. OK, that's a sweeping generalization, but it's not too far wrong. And this show makes it seem so even more.

If you want to see good ones then you have to go back to North Square and Rumpole. Admittedly the last is a joke yet it's a good joke and much missed. North Square, perhaps because it was based in Leeds, did have a grittiness about. It's real secret, however, was the clerk, McLeish.

In Silk all the stock characters are there. The ambitious one, the driven woman who has doubts about her femininity, the insecure one, and the hard-bitten trainee who will get the job at any price. Then they plod to the courts and do their schtick. In this episode every member of chambers, including the prosecutor, was present in court--extremely incestuous.

Rather like North Square the only character that interests me is the barrister's clerk. He's usually the guy (rarely a woman: in fact never on TV) in the sharp suit (better tailor than his barristers) accompanied by a quasi-Cockney accent and who smokes. No one else does, of course. He's the one who gets the work and does the necessary dirty deeds.

In this episode a black female barrister, Kate, accuses the clerk, Billy (always called by their first names), of not wanting to persuade solicitors to pay her fees. She catches him in the hallway and demands he gets her aged fee of £9000. He claims to have tried, but she won't have it and says he is pandering to the solicitors in order to get higher paying work for senior barristers at her expense. In the programme it's clearly true.

Later we see the first junior clerk--also black--reporting to Kate that he has got at least half of her aged fee. Gosh, lines are drawn between the avant-garde and the oldies in chambers. Does this mean revolution is in the wind? Would they ever get rid of those stupid horse hair wigs? The Bar has survived for over 500 years so far so no breath-holding, please.

Yes, we see soft-hearted lawyers trying their damnedest for their clients and hardened types who say just get on with it...lose some, win some... Yes, every bloody cliche in the book (oops, that's one) is thrown at us. And apparently there is QC who is the legal adviser to the show. I would advise her to have her name removed quickly or do an Alan Smithee.

Despite all that, I'm probably going to watch it again. I'm a sucker for these shows, but at least I can write it off as work (yes, I was doing my research last night...) which is more than you can.

Thursday, March 03, 2011

I've been participating in a new educational venture for the past couple of months called "Law Without Walls" (LWOW). It sees current thinking on legal education as being out of touch with the modern world and other dynamic ways of thinking. In other words, it has become stale and narrow. There's not a lot to argue about there.

What is interesting is that the arguments for radical change in legal education in the US are built around the way the legal profession has responded to the financial crisis. The germ of this was that the US legal profession made explicit what had been covert for a time: the tournament for partnership has been dead and long gone. It wasn't sleeping like Monty Python's Norwegian Blue parrot.

Legal education has risen up the agenda in the UK. The three largest legal professional regulators are reviewing education in and training because of the impending arrival of alternative business structures in October 2011.

I may not be the best person to talk about this as I'm a legal academic; sort of, I own up to being a sociologist as well. However, I read an article in The Lawyer by Nigel Savage who terms himself 'Chief Executive' of the College of Law. (I presume by calling himself this he divests himself of all pretensions to being involved in education. If so, fair enough.)

The upshot of the article is that Nigel ain't too happy with the way things are going. It's all happened too late, which is a bit true. This could have been started earlier but when it comes to officialdom, things take time. Even the feistiest of chief executives don't always get their just deserts. Also Nigel wants legal education to be relevant. Hmmm.

I agree that legal education needs shaking up. I think it's last rethink was somewhere around the 1960s with bits of tinkering since. But to be fair, it hasn't really altered since the 19th century, which for a system built on precedent is going it.

There are fundamental differences between the UK and the US in legal education. We educate undergraduates in law and they teach only graduates. Despite this law schools fall unhappily between serving a profession and inculcating liberal values. Two French sociologists said some time ago that all professions were a marriage of technicality and virtuality (practice and theory [?]). So indeterminacy was central and apprenticeship was necessary to impart the correct ways of thinking.

To me this is the fundamental contradiction of Nigel's article, the conflation of education and training. Although this is not bad in itself, they need to be acknowledged as distinct modes of learning with their own values. Nigel sees education as serving the only the needs of training. And this is how many politicians see education--as a means of wealth creation for the economy. It's almost as though the Greeks never existed.

We have been shy in the UK at vocational learning. We persist with the idea that everyone ideally everyone should pursue the academic route whether it's best for them or not. So maybe it is time for a fragmentation of legal education, a scaling of legal education, a disaggregation of legal education. In part we do this with the transfer route where someone with another degree can take a one-year 'conversion' course into law.

Alternative business structures are only one new part of the new legal regime under the Legal Services Act 2007. Their recruiting and training needs may not be as demanding as conventional legal practices: I don't know. But I don't want to see the professional dog in the guise of the SRA, BSB et al to be seen shaking the tail of legal education because we are not the tail. Tails are important yet we as educators are more important than that. Perhaps there is not sufficient theory in the law curriculum; perhaps we could broaden our scope and be more interdisciplinary: I hope so. And I hope we don't become appendages to training. If we do law will suffer and so will the people who turn to law.